A unanimous opinion by three Supreme Court justices on a NIS 7.6-billion lawsuit
by Clalit Health Services dating back to 1998 ruled on Wednesday against the
country’s largest health fund, which was demanding compensation from foreign and
Israeli tobacco company giants for treating members who were victims of
smoking.

The three justices did not deny the tobacco companies’
responsibility for harm done to the health of Clalit and other insurers’
members, but stated that rather than filing a direct action against the tobacco
companies, Clalit should sue on behalf of each individual harmed by
tobacco.

The case was heard by just-retired Supreme Court justice Ayala
Procaccia, who was given a few months to hand down rulings on a series of
uncompleted cases, along with Justice Miriam Naor and Justice Esther Hayut.
Clalit was represented by Israel Council for the Prevention of Smoking chairman
and lawyer Amos Hausner and Dr. Lipa Meir, who frequently represents the health
fund.

The tobacco industry included the Brown and Williamson Tobacco
Corporation; the British American Tobacco Company Ltd. and other members of the
same group; Philip Morris International; Philip Morris USA and other parts of
the group; and Israel’s Dubek Ltd. and other members of its group. Dubek was
represented by Gad Naschitz.

The sum of money demanded by the plaintiffs
– until it was filed the largest amount in any lawsuit in the history of the state – would have provided
a huge boost to the country’s health system, especially to Clalit, which owns 14
hospitals and many hundreds of community clinics around the country. Such an
influx of money would have solved many problems in the system, which has been
struck by Israel Medical Association and Nurses’ Union labor disputes since
April.

No appeal of the three-justice panel’s ruling is allowed. However,
The Jerusalem Post learned that there is a small glimmer of hope that the
lawsuit has not reached an end if Clalit applies for an expanded Supreme Court
justice panel, instead of the existing three members. In the US, such a
procedure is called a “rehearing en banc.”

Hausner has represented Clalit
since 1998. He modelled its case after the huge lawsuits by healthcare systems
of the 50 US states, which ended in a settlement of $245 billion for the
states.

In 2003, the Jerusalem District Court ruled in Clalit’s favor,
but the high-powered Israeli and foreign tobacco companies appealed to the
Supreme Court, which had all the evidence in 2005 but held back from issuing a
verdict until now.

Maccabi Health Services, the second-largest health
fund, had asked in 1999 for a declaratory judgement against Dubek alone; its
lawsuit was dismissed by the late Tel Aviv judge Adi Azar. Clalit asked for
restraining orders against the tobacco companies similar to those agreed upon in
the US state settlement, but Maccabi did not seek that.

Hausner said it
was unfortunate that the tobacco companies, which have caused huge damage to the
health of smokers and non-smokers exposed to their smoke, had not been forced to
pay the medical expenses of the health fund for treating the victims. He noted
that the health system could be transformed by the infusion of this money,
embroiled as it is in a seemingly endless labor dispute over hospital
overcrowding and severe shortage of medical manpower.

The Health
Ministry, for unexplained reasons, has not commented on the case nor allowed the
Post to interview senior officials about it.

Clalit Health Services
commented that it regretted the decision and would study the verdict.

Sites Of Interest

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